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Between Deniz Kilic, applicant, and The Minister of Citizenship and Immigration, respondent

[2004] F.C.J. No. 84 2004 FC 84 Docket IMM-612-03

Federal Court Toronto, Ontario Mosley J.

Heard: January 13, 2004. Judgment: January 21, 2004. (35 paras.)

Counsel:

Micheal T. Crane, for the applicant. Mielka Visnic, for the respondent.

REASONS FOR ORDER AND ORDER 1 MOSLEY J.: Mr. Deniz Kilic seeks judicial review of the decision of the Immigration and Refugee Board, Refugee Protection Division (the "Board"), reasons dated January 8, 2003. In that decision, the Board determined that the Mr. Kilic was not a Convention refugee or a person in need of protection. The applicant seeks an order setting aside this decision and an order remitting his claim back to a differently constituted Board for reconsideration.

BACKGROUND

2 Mr. Kilic, a citizen of the Republic of Turkey, claimed Convention refugee status and that he was a person in need of protection based on his Circassian ethnicity, his Alevi religion, his political opinion as a socialist with perceived links to leftist organizations and his status as an evader of conscription in the Turkish military, for which he faced imprisonment.

3 The applicant is a Circassian Alevi, born to a leftist family in Ankara, Turkey. The applicant claimed several incidents of harassment, abuse and discrimination as he grew up in Turkey from Muslim fanatics and right wing teachers. He claims that in 1990 and 1991 the Turkish Intelligence Service interrogated him for several hours about the Socialist Party. He also claims that he was stabbed, resulting in him almost losing his leg, by members of the Nationalist Action Party supporters when leaving a Socialist Party convention.

4 In 1994, Mr. Kilic claims that while a student at the University of Gazi police arrested him for participating in a demonstration, interrogating and torturing him. He also claims several other incidents of arrest and abuse, spanning the mid-1990s through to January 2001 due to his involvement with leftist organizations and for his religious identity as an Alevi. The parents of a Sunni Muslim woman he was dating threatened him after discovering he was Alevi. He claims that in January 2001 the police raided his parents' home, because his girlfriend's parents had told the police that he belonged to the Revolutionary Peoples' Liberation Army. His girlfriend's father told him that the police had stated that he was to report to the security department. Because of his past experience with the authorities, the applicant did not report and started making arrangements to get out of Turkey.

5 He left Turkey on February 1, 2001 and arrived in Canada at the end of February, 2001. He initiated his claim for refugee status in Canada on February 24, 2001.

6 While in Canada awaiting his hearing before the Board, the applicant received a "call-up notice" dated October 26, 2001, directing him to present himself at a recruitment office of the Turkish military on November 20, 2001. Mr. Kilic's father, in Turkey, had been served with this notice by a police officer. His father subsequently forwarded this notice onto the applicant in Canada. The applicant claims that since he did not report to the Turkish military as requested on November 20, 2001, he is draft evader and would be imprisoned if returned to Turkey.

7 The applicant's hearing before the Board was held on October 23, 2002. Subsequent to the Board's hearing, the applicant received further correspondence, dated October 17, 2002, from the Turkish Ministry of National Defence. The applicant received this notice in November 2002. On November 22, 2002, Mr. Kilic's counsel requested that this letter be considered as post-hearing evidence by the Board.

8 The Board allowed admission of this post-hearing evidence. The notice stated that due to the fact that Mr. Kilic had failed to arrange for his dispatch, he was regarded as an absentee from conscription and would be subject to a "serious prison sentence" in accordance with "military punishment law", and he was required to go to the military division that was nearest his place of residence in order to arrange for his dispatch.

The Board's Decision

9 The Board found many aspects of Mr. Kilic's allegations implausible, particularly his description of how he entered Canada. The Board also found the applicant's claims implausible in light of the fact that he failed to provide certain documents requested by the Board related to his education in Turkey. Further, the Board found fault with the quality of the applicant's membership card in the Worker's Party.

10 The Board also found Mr. Kilic not to be a credible witness because there were a number of contradictions and implausibilities in his account of events leading to his departure from Turkey for which he did not provide reasonable explanations. Also, the Board disbelieved the applicant's account of his relationship with a woman whose parents disapproved of her dating an Alevi and whose father threatened the applicant.

11 The Board stated that it had considered the psychologist and psychiatrist reports submitted by the applicant and found that they did not provide a reason for the inconsistencies and implausibilities in the applicant's evidence. However, the Board accepted the findings of these experts, including an assessment that the applicant had impaired concentration and memory and post-traumatic stress disorder, and accepted the impact of these conditions on the applicant's testimony. The Board found that these reports did not answer for Mr. Kilic's failure to provide supporting documentation (related to his university records) that had been requested by the Board.

12 In relation to the applicant's claim as an evader of military service, the Board acknowledged and referred to letters from the Turkish Ministry of National Defence, tendered by the applicant, on this issue. The Board then concluded that the applicant would not face a well-founded fear of persecution based on his objection to military service, as the Board found that he did not have a genuine political, religious or moral conviction, or genuine reasons of conscience, for objecting to perform his compulsory military service.

APPLICANT'S SUBMISSIONS

13 The applicant argues that the Board was required to evaluate, pursuant to section 97 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA"), whether the applicant would be at risk of torture or risk his life or face a risk of cruel and unusual treatment or punishment if the applicant was returned to Turkey. Specifically, the applicant argues that since the evidence before the Board indicated that the applicant would be imprisoned upon return to Turkey, due to his evasion of military service and his conscientious refusal to serving in the Turkish military, the Board had an obligation to set out, in its reasons, why it did not find the applicant to qualify as a person in need of protection under section 97 of IRPA.

14 The applicant refers to a recent Refugee Protection Board decision where it was found that returning an Argentinian claimant to a prison sentence, where the evidence indicated he would be personally at risk of torture or cruel and unusual treatment, would not be a consequence of "legitimate punishment" that would be inherent or caused by a lawful sanction. That claimant was found to be a "person in need of protection". The risk in that case resulted from the country's prison system and from the state's systemic use of torture as a means of punishment within prisons: RPD MA2-01726, Éthier, September 18, 2002.

15 The applicant also submits that the Board's reasons are inadequate in regards to medical evidence submitted by the applicant. The Board did not take issue with the expert medical diagnoses, and in fact accepted them. However, the Board did not find that this evidence answered the frailties in the applicant's evidence, without explaining a reason for this view.

16 The applicant argues, as well, that several implausibility and credibility findings of the Board were made in error. The applicant submits that the Board erred viewing the applicant as non-credible for his failure to provide corroborative documentation of his schooling because there was no evidence to contradict his testimony that he had attended certain schools. Here, the applicant relies on Selvakumaran v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 842 (T.D.)(QL). The applicant submits that the Board misinterpreted his meaning in the description of the boat on which he travelled to Canada and also erred in interpreting section 106 of IRPA, in that the applicant only had to establish his identity based on "acceptable" identity documents which did not particularly have to be a passport.

RESPONDENT'S SUBMISSIONS

17 Upon motion at the hearing of this matter, and with the consent of the applicant, I allowed the respondent to file its application record at the date of the hearing. The respondent's main argument is that the Board's reasoning was based on several negative credibility findings which were reasonably open to it.

18 In response to the applicant's submission that the Board erred in not analysing his claim under section 97, the respondent argues that given that the applicant had not brought forth reliable and credible evidence for his fear of persecution, there was no need for the Board to analyze his claims pursuant to section 97.

19 The respondent submits that the Board considered the medical reports provided by the applicant and that such reports cannot serve to cure any or all deficiencies in his testimony: Rokni v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 182 (T.D.)(QL). The respondent also points out that the applicant failed to provide the Board with requested documents or a reasonable explanation as to such failure. The respondent argues that the Board validly used this lack of information as part of its negative credibility assessment.

ISSUES

20

1. Did the Board err in failing to set out reasons for finding that the applicant was not a person in need of protection pursuant to section 97(1) of IRPA?

2. Did the Board commit any other reviewable errors?

ANALYSIS

21 In my opinion, this application for judicial review should be allowed on the ground that the Board's reasons do not demonstrate any analysis of section 97 of IRPA. Section 97(1) of IRPA reads:

97. (1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally

(a) to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture; or

(b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if

(i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country,

(ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country,

(iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and

(iv) the risk is not caused by the inability of that country to provide adequate health or medical care.

22 The Board states a conclusion at page 5 of its reasons, in relation to finding that Mr. Kilic is not a person in need of protection, however, this provides no explanation for this determination.

23 On the record before the Board was a letter from the Turkish Ministry of National Defence stating that the applicant was regarded as an absentee from conscription and in accordance with "military punishment law, paragraph 63, those who have committed the offense of being an absentee from conscription are punished with a serious prison sentence. This sentence cannot be converted into payment of a fine in its place." This document, in addition to the applicant's "call-up notice" to serve in the military, dated October 26, 2001 and human rights reports describing deplorable prison conditions in Turkey, indicate that some sort of analysis by the Board setting out why the applicant was not a person in need of protection was required. Such reasoning should have included, quite obviously, analysis of whether the risk was inherent or incidental to lawful sanctions and whether such sanction would be imposed with disregard to accepted international standards, as set out in subsection 97(1)(b)(iii) of IRPA.

24 The recent decision of Justice Blanchard in Bouaouni v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 1540 (T.D.)(QL) supports this conclusion. I gave the applicant and respondent an opportunity to provide written submissions on this decision following the hearing.

A claim under section 97 must be evaluated with respect to all the relevant considerations and with a view to the country's human rights record. While the Board must assess the applicant's claim objectively, the analysis must still be individualized. I am satisfied that this interpretation is not only consistent with the United Nations CAT [Convention Against Torture] decisions considered above, but is also supported by the wording of paragraph 97(1)(a) of the Act, which refers to persons, "...whose removal ... would subject them personally...". There may well be instances where a refugee claimant, whose identity is not disputed, is found to be not credible with respect to his subjective fear of persecution, but the country conditions are such that the claimant's particular circumstances, make him/her a person in need of protection. It follows that a negative credibility determination, which may be determinative of a refugee claim under s. 96 of the Act, is not necessarily determinative of a claim under subsection 97(1) of the Act. The elements required to establish a claim under section 97 differ from those required under section 96 of the Act where a well-founde[d] fear of persecution to a convention ground must be established. Although the evidentiary basis may well be the same for both claims, it is essential that both claims be considered as separate. A claim under section 97 of the Act requires that the Board apply a different test, namely whether a claimant's removal would subject him personally to the dangers and risks stipulated in paragraphs 97 (1) (a) and (b) of the Act. Arguably, the Board may also be required to apply a different standard of proof, which is an issue that I will leave for another day, since it was not argued on this application. Whether a Board properly considered both claims is a matter to be determined in the circumstances of each individual case bearing in mind the different elements required to establish each claim.

26 In Bouaouni, supra, it was held that the board addressed the country documentation before it and that due to important contradictions in the claimant's evidence, the board's negative credibility findings were such that there was "no other evidence" before it that could have led it to find that the claimant was a person in need of protection. Therefore, in that case, even though the board erred in failing to specifically analyse the claim pursuant to section 97 of IRPA, the court held that the board's conclusion that the applicant was not a "person in need of protection" pursuant to subsections 97(1)(a) and (b) was open to it on the evidence.

27 In my opinion, the Board in this case did not address the country documentation and other evidence related to prison conditions in Turkey and failed to consider whether the applicant could be a "person in need of protection" if returned to that country, in light of the possibility that he may face a "serious prison sentence" for evading Turkish military service. Despite the Board's negative credibility findings, a separate analysis, along the lines described in Bouaouni, supra, and having regard to the legislative wording of section 97, may have produced a finding that Mr. Kilic was a person in need of protection. Therefore, the result of the Board's error is unknown, and accordingly, this application should be sent back for redetermination on this ground.

28 I do not agree with the respondent's submission that the lack of analysis in the Board's reasons in relation to section 97 can be explained by a lack of sufficient evidence of risk to the applicant on the section 97 grounds. As outlined above, there was evidence on the record before the Board, such as human rights reports describing the abusive conditions in Turkish prisons and correspondence the applicant had received from the Turkish Ministry of National Defence, that went to the applicant's alleged risk pursuant to section 97.

29 Furthermore, I do not agree with the respondent's submission that the reasons of the Board demonstrate that Board did consider risk to the applicant, through the lens of section 97. The determination that the applicant was not a "conscientious objector" and that Turkish conscription laws were not "persecutory", relate to analysis of the evidence according to the standard set out in the Convention refugee definition. To qualify as a person in need of protection pursuant to subsection 97(1)(a) or (b), an applicant does not need to show a nexus to a Convention ground, hence the question of whether the applicant in this case objected to military service on political or moral grounds is irrelevant, and the question of whether Turkish conscription laws meet the standard of being "persecutory" is also irrelevant. Both these questions relate to the determination as to whether the applicant qualifies as a Convention refugee, and not whether the applicant qualifies as a "person in need of protection".

30 With respect to the applicant's second argument, I am satisfied that the Board provided a clear explanation for not being convinced that the medical diagnoses overcame the problems with the evidence submitted by the applicant. The Board stated that while the medical assessments may have explained Mr. Kilic's poor memory and inability to concentrate in his testimony, such assessments did not overcome his failure to obtain requested documents, or provision of a reasonable explanation for such failure.

31 Concerning the applicant's challenge to the credibility findings of the Board, they are, for the most, without merit. The Board requested, prior to the hearing, through a "Screening Form and Disclosure Order" specific documentation from the applicant, including proof of enrolment or attendance at the four universities mentioned in the PIF. It is not unreasonable to expect the applicant to have some sort of explanation as to why he could not obtain certain, requested documentation. Further, I find that Selvakumaran, supra, does not assist the applicant, as it does not appear from the reasons of that case that it dealt with a prior request for documentation, to which the applicant failed to provide an explanation as to why such documents could not be produced.

32 Further, I am satisfied that the Board did not err in interpreting section 106 of IRPA, in that, it accepted the applicant's Turkish identity card and driver's licence as acceptable documentation establishing his identity. The Board member inquired about the applicant's passport, but did not interpret section 106 in a manner that only a passport could establish identity.

33 Finally, I agree with the applicant's argument in relation to the Board's finding of implausibility regarding his testimony about the ship he travelled on to the United States. The Board's finding against the applicant in this regard is not supported by the evidence that was before it and represents a misinterpretation of the applicant's testimony. At pages 188-189 of the tribunal record, the transcript of the Board hearing reveals the following exchange:

COUNSEL: Okay. What was the name of the boat?

CLAIMANT: I can't remember. It could be, there is a number, but I'm not sure, I don't want to give you the wrong name, it could be guessing something, I don't want to give you the wrong name.

PRESIDING MEMBER: Is there any reason that you can't remember the name of the boat?

CLAIMANT: How?

PRESIDING MEMBER: Is there any reason why you can't remember the name of the boat?

CLAIMANT: Maybe for my, from mentally there could be some problems, I don't know. I'm after my life, and to pay attention to the boat name, like looking at the licence plate on a taxi, and I didn't look.

COUNSEL: Okay. What kind of boat was it?

CLAIMANT: Passenger. Not like a trans-Atlantic huge, not a huge boat. Just passenger.

34 This testimony reveals that the applicant stated that the boat was not a "huge" trans-Atlantic vessel. It was perverse of the Board to find that the applicant described that he travelled to the United States on a ship that was "not designed to sail across the Atlantic", at page 8 of the Board's reasons.

35 The applicant requested a question for certification in the event that this Court declined to follow the decision of Bouaouni, supra. As I have stated my concurrence with the reasoning in Bouaouni, supra, there is no need to address the requested question.

ORDER THIS COURT ORDERS that this application for judicial review is allowed, the decision of the Board, reasons dated January 8, 2003, is set aside and the applicant's claim that he is a Convention refugee and/or a person in need of protection is remitted to a different Board for reconsideration in accordance with these reasons. No question is certified.